The Supremes — the jurists, not the singers — are finding nothing but heartache as controversy swirls during their summer recess.
A fruitless search for perfection, the result of lower tolerance for human error, is resulting in criticism of the U.S. Supreme Court since its decision in the Hobby Lobby case exempting closely held corporations from some elements of the Affordable Care Act.
There have been calls to overturn the decision, to dethrone the high court as the ultimate decision-maker.
There is dissatisfaction with finality.
The justice system is, by its very nature, adversarial. Thus, one of the two sides involved is going to be unhappy with a decision.
Of course there is a contradiction to be found with a court that determines a corporation to be a legal person but an unborn human is not.
We are looking for a final — maybe not perfect — solution to a question.
Some complaints about the Hobby Lobby decision centered on a key part of the case: whether the government can require companies to pay for insurance for contraceptives for women. The decision was flawed, some say, by the fact that six of the nine justices are male.
Every case brought to the Supreme Court involves the reconciliation of a law or a lower court decision to the Constitution. Is it in concert with the Constitution or does it violate it?
These are not easy questions; they are subtle and nuanced. “Congress shall make no law …”
At their time, the founders expected laws to be made by Congress and legislatures, not envisioning a multilayered government where a constitutional question could arise by the act of some bureaucratic rule-maker.
Various sports leagues instituted the instant replay to overcome the fallibility of human judgment. The decisions made constantly on the field by officials were not without criticism (Hey, ump! Get some glasses!). But simple: The football either crossed the goal line or not; the base runner reached the base before the tag or not.
The justices must deal with precedent — how the court dealt with a previous question — yet come to new understandings brought by changes. You won’t find rulings about nuclear power plants or atomic energy before 1950.
One commentator suggests these rulings are based less in law than in the personal beliefs of the men on the tribunal. They chose the desired result first, and then backfilled whatever reasoning would get them there.
A personal belief is one that reflects one’s formation, values and principles.
What’s wrong with saying “this is wrong” and then look for evidence to support that feeling or supposition?
Their gender, religion and education are not used in support of prejudices: That would be wrong.
The law rests upon a consensus dealing with principles, a consensus that transcends religious and cultural differences.
Law is not interpreted from the viewpoint of gender, religion and education, but by principled persons using their best judgment to come to a decision.
It’s time to worry less about the demographics of justices and more about maintaining a society where principles and values are given the premier position.
Kent, retired editor of archdiocesan newspapers in Omaha and Seattle, can be contacted at firstname.lastname@example.org.
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